In an earlier post we suggested that it was settled law that the courts of England and Wales would not normally upset the intentions of a will so long at its terms were not for an illegal purpose or wholly unreasonable. In the following guest post, Christopher Luff takes the matter further.

The Law Society’s guidance

On 13 March 2014, the Law Society published new guidance for practitioners on draft sharia-compliant wills. This resulted in some very pejorative reporting in the press, with warnings that sharia had been adopted by “British legal chiefs” and that sharia was being “enshrined” in British law for the first time: see The Telegraph, 22 March 2014)

An earlier post on this blog noted that secular courts have upheld religious arbitration decisions, citing an example from the Jewish Beth Din, and invited readers to consider to what extent secular courts should uphold such decisions. It went on to ask how far testamentary freedom should be respected as a matter of public policy. What follows attempts to address that second point.

The freedom on testamentary disposition

The starting point is to acknowledge the general proposition that “a testator may make whatever testamentary disposition he or she wishes” and then to ask if there are any exceptions to that rule. Three spring to mind.

Firstly, the will might be subject to the possibility of challenge under the Inheritance (Provision for Family and Dependants) Act 1975; an acknowledgement expressly made in the Law Society guidance. Secondly, it might be challenged for reasons of uncertainty, which is what the Law Society guidance seems to be directed at avoiding. Finally, it might be challenged because the terms are contrary to public policy, which is where the controversy seems to lie.

Some interesting parallels can be drawn between the sharia-compliant wills envisaged in the guidance and past British practice – by which I mean specifically relating to the law of England and Wales, where no one has a legal right to inherit. (Scotland is different.)

Sharia wills, according to the Law Society guidance, demonstrate several characteristics. Some seem to be uncontroversial. Burial costs and debts must be accounted first. The testator may freely dispose of one-third of his assets. It is the remaining two-thirds of the estate (which must be disposed of according to strict rules predetermining the shares) that is at the root of the arguments. It includes such provisions as:

• non-Muslims cannot inherit from this portion of the estate,
• male heirs receive twice the amount of female heirs,
• only Muslim marriages are recognised,
• divorced spouses do not count as heirs,
• descendants of deceased heirs cannot inherit from this portion of the estate,
• illegitimate and adopted children are not heirs,
  and finally,
• the freely disposable one-third may not be used to bolster the share received by an heir according to the rules applying to the two-thirds rules.

One of the difficulties faced by a testator wishing to draft a sharia-compliant will is that the status of heirs according to sharia is not finally known until the testator dies. That factor starts to get us to the heart of the controversy. The will must be worded prospectively such that it excludes certain classes of people by certain characteristics, and includes others on the basis of other criteria; characteristics and criteria which wider society might see as morally repugnant. It is one thing for a testator to leave gifts to Alan, Brian and Charles, where it may be possible to discern characteristics according to gender, race, religion or circumstances of birth, when compared with Amy, Betty or Callam, to whom the testator chooses not to leave gifts. It appears quite another matter to specify those characteristics in advance.

However, the attitude of the courts seems to be very strongly weighted in favour of the testamentary freedom to do just that. Here is a brief summary of three cases that deal with testamentary freedom from the religious angle, which address, in turn, whether the testator might specify a positive qualifying religious criteria, whether the testator might specify a negative criteria by way of a forfeiture clause based on religious criteria, and how easy or not it is to have a will modified to remove such a clause.

Testamentary freedom as regards religion

In Re Allen, decd, Faith v Allen (No 1) [1953] Ch 810, the Court of Appeal had to decide whether or not conditions of forfeiture in a will were void for uncertainty. They provided that the beneficiary shall (i) be a member of the Church of England and (ii) an adherent to the doctrine of that Church.

While a majority decision, there was unanimity that the first question was not void for uncertainty. Membership of the Church of England had been recognised in earlier cases, “the words have long been understood as conveying a clear and definite meaning” (Birkett LJ).

Defining that meaning was a little more difficult; but baptism, confirmation and whether the person would ordinarily be regarded as a member were all facts capable of demonstration to sufficient certainty. It should be possible for an intended beneficiary to adduce evidence of such membership.

That seems to me to be relatively uncontroversial. It should always be possible to adduce evidence of a person’s membership, by way of membership records or witness testimony of attendance and participation in particular religious events. All three judges struggled, however, on the question of adherence to doctrine.

Lord Evershed posited an example of a church dignitary or office holder, and suggested that there should be no doubt as to that person’s adherence. Therefore the clause cannot be void for uncertainty. He came to the conclusion that:

“the designated beneficiary […] should have to prove to the satisfaction of the trustees (or, if necessary, the court) that his membership of the Church was conscientious; […] it is not, I think, useful or possible, to attempt further exposition in the absence of the evidence.”

Lord Justice Romer, on the other hand, felt there were two levels of uncertainty to the second question: what is the doctrine of the church, and how is one to go about ascertaining another’s adherence to it? “I have no idea as to the degree or manifestation of adherence which the testator had in mind.”

“Some of the tenets of the church may be said without irreverence to be contrary to all established scientific experience. Does a man “adhere” to such tenets if he accepts them merely as imagery or allegory, or does nothing short of absolute and literal belief constitute adherence? Does outward acceptance of a doctrine suffice whatever the degree of mental reservation ? Must the doctrine be accepted in its entirety or may certain exceptions be permitted, and if so, what?”

Both make persuasive points – if there are clear-cut cases then the test cannot be void for uncertainty. But how clear cut is the adherence to doctrine of a church office-holder, and are we talking about outward or inner adherence? It seems to me the questions raised by Romer LJ are getting into that otherwise non-justiciable area of theology that Lord Carey invited the courts to enter in McFarlane v Relate Avon Limited [2010] EWCA Civ 880, which presumably leaves only outward adherence.

This seems to me to be rather more unsatisfactory, and I do question the ability of a secular court to assess something as subjective as adherence to doctrine. Nevertheless, it is reasonably clear that the courts will treat both questions of membership and adherence to a faith, while controversial and open to argument, as not automatically void for uncertainty.

Second is the case of Blathwayt v Cawley [1975] AC 397, where the House of Lords had to consider a forfeiture clause which provided that any intended beneficiary who became a Roman Catholic would lose their inheritance. While the outcome was by bare majority on the facts, there was unanimity on the question of the validity of the forfeiture clause itself.

Was it void for uncertainty? Not according to precedent:

“Clauses relating in one way or another to the Roman Catholic Church, or faith, have been known and recognised for too many years in both Acts of Parliament and in wills and settlements for it now to be possible to avoid them on this ground.” (Lord Wilberforce)

To hold otherwise would be “an affront to common sense.” (Lord Cross of Chelsea)

Again, that seems relatively uncontroversial. If membership of the C of E can be ascertained, that should presumably follow for any church or similar organisation.

What about public policy? Lord Wilberforce considered the moves society was taking against discrimination, citing the Race Relations Act 1968 and the European Convention of Human Rights of 1950.

“But acceptance of this does not persuade me that we are justified […] in introducing for the first time a rule of law which would go far beyond the mere avoidance of discrimination on religious grounds. To do so would bring about a substantial reduction of another freedom, firmly rooted in our law, namely that of testamentary disposition. Discrimination is not the same thing as choice: it operates over a larger and less personal area, and neither by express provision nor by implication has private selection yet become a matter of public policy.”

Lord Cross agreed with him:

“it does not follow from that that it is against public policy for an adherent of one religion to distinguish in disposing of his property between adherents of his faith and those of another.”

The thrust of this is clear. Governments should not discriminate; individuals may do so in their private affairs.

Thirdly, we look at the enforceability of a testator’s wishes. In Re Remnant’s Settlement Trusts [1970] Ch 560, a High Court case, Mr Justice Pennycuick was invited to approve the variation of a will trust that included a forfeiture clause. The forfeiture operated to exclude beneficiaries who practised the Roman Catholic faith or who married a Roman Catholic. One of the testator’s daughters fell within the forfeiture, as likely would some of her children.

The variation, under the Variation of Trusts Act 1958, was supported (as it had to be under the Act) by all the beneficiaries; but the judge had also to be convinced that the variation was to the benefit of those beneficiaries.

The underlying issue of the case seems to be the testator’s wish to direct his descendants’ religious choices from the grave, as it were. The judge seemed to find no difficulty in approving the variation, in spite of the financial implications for those who stood to gain from the forfeiture. The family was united in having the forfeiture removed and the judge was alert to the possibility of problems in the family if the forfeiture clause stood.

The point in our context, however, is the non-starter such a variation would have been without the agreement of all of the beneficiaries. The courts are very strict on the rule, in the VTA 1958, that all beneficiaries must agree to the variation, (see Knocker v Youle [1986] 1 WLR 934).

There was a question raised in Re Remant’s about the validity of the forfeiture clause per se and a challenge to Faith v Allen seems to have been contemplated. However, in light of Blathwayt v Cawley, such a challenge seems most unlikely to have succeeded.

Conclusion

Are there wider issues of public policy that might prevent a sharia will? It is only since the Family Law Reform Act 1969 that it has even been possible to constitute a trust in favour of an “illegitimate” child. Prior to that, such a trust was void for offending public policy. But I have found no suggestion that it would be unlawful to exclude such children from a will, albeit subject to any subsequent challenge under the 1975 Act.

Finally, the differential treatment of women, specifically. Well, it was only with the enactment of the Trusts of Land and Appointment of Trustees Act 1996 that it ceased to be possible to create a will that passed real property by means of a “fee tail male”, whereby one’s male offspring would inherit the family land. To my knowledge, such wills that were validly created prior to the Act will continue to be upheld by the courts. The will in Blathwayt v Cawley had such a provision and seems to have caused no embarrassment, albeit that was several decades ago now.

So the law of England and Wales appears to recognise, quite unequivocally, a testator’s freedom to distribute his assets as he wishes, whether directly by name or more controversially by class of beneficiary. In ways practised until quite recently, it was possible, and even common, to distribute estates in ways not dissimilar to those required by sharia. Compared with a “fee tail male”, a sharia will might even be considered generous to the female beneficiary.

The crux of the controversy seems to me to come back to whether, and if so to what extent, the State should regulate testamentary freedom per se. The difficulty with getting into that argument is that, even so, there are means of getting around what is said on the face of a will. Restricting testamentary freedom that appears immoral, unjust or discriminatory will presumably only encourage the use of secret and half-secret trusts – themselves used in the past to overcome the public policy restrictions forbidding trusts for the benefit of illegitimate children.

In my opinion, encouraging the use of secret and half-secret trusts is not the way to go, with all the uncertainty, lack of transparency, difficult evidential problems and scope for quarrelling that would involve; with the inevitable litigation to follow.

Given the sensitivities involved in the execution of wills that is something to be avoided.

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The above has been cross-posted on Christopher’s blog.